PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Joseph Macarius, Audrey Botros, and Law Offices of Saher
Joseph Macarius LLC on brief for petitioner.
A. Readler, Acting Assistant Attorney General, Civil
Division, M. Jocelyn Lopez Wright, Senior Litigation Counsel,
Office of Immigration Litigation, and Anna Juarez, Trial
Attorney, Office of Immigration Litigation, on brief for
Thompson, Kayatta, and Barron, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
Amma Adu Gyamfi ("Gyamfi") challenges the Board of
Immigration Appeals's ("BIA") denial of her
motion to reopen and its decision not to exercise its sua
sponte authority to reopen her case and grant her request for
an adjustment of status. For the reasons we detail below, we
deny and dismiss Gyamfi's petition.
March of 2004, Gyamfi, a native of Ghana and resident of
Italy from 1992 until 2004, arrived in the U.S. on a
nonimmigrant B-2 visa that granted her a six-month stay here.
Gyamfi didn't leave after her permissible time here
expired, and in November 2007, she married a U.S. citizen,
Mark Parrish. That following April, Parrish filed an I-130
petition to get Gyamfi green-card status as the
spouse of a U.S. citizen, but when the Department of Homeland
Security ("DHS") issued a notice of intent to deny
the petition (because the newlyweds hadn't demonstrated
the legitimacy of their marriage), Parrish wound up admitting
in a 2009 DHS interview that he had made the petition as
"a favor" to Gyamfi. Consequently, he withdrew the
petition, and DHS denied Gyamfi's application for
adjustment of status in April 2009.
later, DHS initiated removal proceedings against Gyamfi: she
was charged with removability as an alien who remained in the
U.S. for a time longer than permitted after being admitted as
a nonimmigrant visitor (8 U.S.C. §
1227(a)(1)(B)). Over the course of a couple of years
(2009-2010) and a few hearings before an immigration judge
("IJ"), Gyamfi would first pursue a new I-130
petition, then withdraw it, and in the end, seek asylum
by her arguments and testimony relative to her lamentations
of persecution, in March 2013, the IJ ordered her
removed. The BIA affirmed the IJ and, in July 2014,
dismissed the appeal. Gyamfi did not seek judicial review of
three years to August 31, 2017: in light of an I-130 petition
filed in November 2015 on her behalf by her recently
naturalized U.S. citizen daughter (and which was approved by
DHS in April 2016), Gyamfi sought to adjust her status. She
moved to reopen her case and also requested sua sponte
("on its own motion") reopening by the BIA premised
on the hardship her removal would have on her children. In
response, DHS filed an opposition to the motion, albeit late.
denied Gyamfi's motion as untimely (the final
administrative order entered in July of 2014, and the BIA
didn't receive the motion to reopen until August 2017)
and not falling within any exception to the ninety-day window
to file a motion to reopen. See 8 U.S.C. §
1229a(c)(7)(C)(i); 8 C.F.R. §§ 1003.2(c)(2),
1003(c)(3)(i)-(iv). In addition, the BIA declined to exercise
its discretionary authority to reopen the proceedings sua
sponte, finding that Gyamfi failed to demonstrate an
exceptional situation that would warrant the exercise of its
sua sponte power, and she alleged "no current health
issues regarding [her I-130-petitioning daughter] or her
other United States citizen children that might warrant a
finding of exceptional circumstances."
timely petitioned this court for review.
offers up a smorgasbord of appellate contentions, but
distilling those arguments to their core essence as best we
can, we think they primarily fit under two main headings: (1)
the BIA abused its discretion by denying her motion to
reopen; or, in the alternative, (2) the BIA should have
deployed its discretionary authority to reopen the
proceedings sua sponte. She advances various arguments in
support of these two issues, which we will explore in turn.
we review Gyamfi's contestations, we necessarily bear in
mind our familiar standard: to the extent we have
jurisdiction, "[b]ecause a motion to reopen removal
proceedings is a disfavored tool, given the threat it poses
to finality, the BIA has a fair amount of latitude to grant
or deny the motion and our review is for abuse of discretion
only." Mazariegos v. Lynch,
790 F.3d 280, 285 (1st Cir. 2015) (citing Perez
v. Holder, 740 F.3d 57, 61 (1st Cir.
2014)); see also Sihotang v.
Sessions, 900 F.3d 46, 48 (1st Cir. 2018)
("Motions to reopen -- especially untimely motions to
reopen -- are disfavored in immigration cases. Consequently,
an alien who seeks to reopen removal proceedings out of time
ordinarily faces a steep uphill climb."). Unless a
petitioner can show that the BIA either committed a material
error of law or exercised its authority arbitrarily,
capriciously, or irrationally, we will uphold the BIA's
decision. See Bbale v. Lynch, 840
F.3d 63, 66 (1st Cir. 2016) (citing Rosa v.
Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)).
diving into Gyamfi's argument, saying a bit more about
the pertinent aspects of the ninety-day rule would be
helpful. Pursuant to 8 U.S.C. §
1229a(c)(7)(C)(i), an alien is entitled to file one motion to
reopen removal proceedings within ninety days after the final
order of removal. See id. (instructing that, unless
an exception applies, "the motion to reopen shall be
filed within 90 days of the date of entry of a final
administrative order of removal"); see also 8
C.F.R. § 1003.2(c)(2) (stating that, save for specified
exceptions, "an alien may file only one motion to reopen
removal proceedings (whether before the Board or the
Immigration Judge) and that motion must be filed no later
than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be
reopened"); Neves v. Holder,
613 F.3d 30, 32-33 (1st Cir. 2010)(per curiam). As for the
exceptions, Congress enacted a limited list. See 8
U.S.C. § 1229a(c)(7)(C)(ii)-(iv); 8 C.F.R. §
the BIA abuse its discretion? ...